1. ' This First Rent Appeal has been filed by the appellant/opponent against the order of the IInd Rent Controller, Karachi (South), dated 14-12-1997 in Rent Case No,676 of 1995, whereby he ordered the ejectment of the appellant/opponent from the premises in dispute. Feeling aggrieved and dissatisfied with the said ejectment order the appellant/ opponent has filed this first rent appeal.
2. ' The brief facts as stated by the respondents are that the respondents/ applicants filed ejectment application under section 15 of the Sindh Rented Premise Ordinance, 1979 (hereinafter referred to as the Ordinance) against the appellant/opponent on the ground of their reasonable and bona tide requirement of the tenement/office premises hearing No,104, 1st Floor, Al-Farid Center, Moulvi Tamizuddin Khan Road, Karachi comprising 1892 Sq., feet (hereinafter referred to as the demised premises), which was rented out to the appellant/opponent by the previous owners of the demised premises. Subsequently, the respondents/applicants became the owners/landlords of the demised premises and notice under section 18 of the Sindh Rented Premises Ordinance, 1979 through their Advocate's letter, dated 24-2-1994 was sent to appellant/opponent wherein the appellant/opponent was also called upon to hand over vacant possession of the demised premises to them as Respondent No,1/.Applicant No,1, who is an Architect ' Engineer and Builder, was doing business at Lahore but subsequently he decided to come to Karachi and permanently settle down here and for starting his business as an architect and builder he required the demised premises for his personal bona fide use. It was furtner stated that the respondents/applicants did not have any other premises wherein the Respondent No,1 /Applicant No,1 could start his business.
3. As the appellant/opponent failed to hand over vacant possession of the demised premises the respondents/applicants had no option but to file the aforestated rent case ejectment application.
4. One Tanwir Muzaffar filed written statement on behalf of the appellant/opponent, wherein the description of the appellant/opponent was mentioned as Firdous Carpet (Pvt.) Ltd. He raised preliminary objections with regard to the maintainability of the rent case/ejectment application on the ground that the attorney of the applicant was not competent or authorised to institute the proceedings; that the contents of the rent case/ejectment application were based on misrepresentation, misstatement and concealment of material facts; and that the owners/landlords of the demised premises were Hafiz Uddin and others and the same was rented out to Tanwir Ahmed & Co. And Tanwir Woolen Mills. It was further submitted that Hafiz Uddin and others filed a rent case for ejectment of Messrs Tanwir Ahmed and Co. And Tanwir Woolen Mills on the ground of default which was decided against the landlords at the stage of the Supreme Court of Pakistan by judgment/order, dated 4-3-1987. However, Hafiz Uddin and others did not accept rent and the opponent started depositing rent in the Court of VII Senior Civil Judge and Rent Controller, Karachi (South) and continued to deposit the same regularly. The existence of relationship of landlords and tenant between the aforesaid parties was vehemently denied on the ground that neither the respondents/ applicants were the owners/landlords of the demised premises nor the appellant/opponent was the tenant of the respondents/applicants in respect of the demised premises. The facts narrated in the paragraphs 1 to 7 of the rent case/ejectment application were denied by the appellant/opponent and it was submitted that the rent case/ejectment application was not maintainable in law describing the same as false, frivolous, baseless and vexatious and was liable to be dismissed under section 17 of the Sindh Rented Premises Ordinance, 1979.
5. ' On the basis of the aforesaid pleadings of the parties the Rent Controller framed the following issues:--- "(1) Whether the relationship of landlord and tenant exits between the parties?
(2) Whether the premises is required by the applicants for their personal bona tide need?
(3) What should the order be?
6. ' In the. Court of Rent Controller, on behalf of the respondents/applicants, Respondent No,1 tiled his affidavit-inevidence and also produced several documents alongwith his affidavit-in-evidence as Annexures ' A' to ' E'. Respondents/applicants also examined one Abdul Rehman as their witness, who also tiled his affidavit-in-evidence. Both of ihem were duly cross-examined by the Advocate for the appellant/opponent. On behalf of the appellant/opponent one Zakir Hussain, authorised officer of Messsrs Firdous Carpet (Pvt.) Ltd. Filed his affidavit-in-evidence and produced certified copies of judgments in Rent Case No, 2431 of 1977 between Hafiz Uddin and others v. Messrs Tanwir Woolen Mills Limited and in Rem Case No, 2430 of 1977 between Hafiz Uddin and others v. Tanwir Ahmed and Co. As Exhs.0/2 and 0/3 respectively. On the basis of the evidence adduced before it, the Trial Court.Decided the aforesaid issues as under:--- ' Issue No: 1 In the affirmative Issue No,2 In the affirmative.
7. ' Issue No,3 On the basis of the findings on Issues No,1 and II Rent Controller Karachi (South) allowed the rent case/ejectment application and ordered eviction of the appellant/opponent, from' the demised premises.
8. ' Feeling aggrieved and dissatisfied with the said order, the appellant/opponent challenged the same by way of this First Rent Appeal.
9. ' On 14-12-1999, it, was agreed by the learned counsel for the parties that they would advance their respective arguments which may be treated final hearing of the appeal at the stage of Katcha Peshi. Accordingly the arguments of Messrs I.H. Zaidi and Iqbal Kazi, the learned counsel for the parties were heard on merits and the matter was reserved for judgment.
10. ' The respondents had acquired ownership of the demised premises by virtue of an Award/Decree, dated 9-9-1986 of this Court in Suit No, 191 of 1986. On pages 12 and 13 share of respondent Moti-ur- Rehman has been mentioned, according to which he had become owne, of the demised premises to the extent of 50% shares and full owner of tenements/premises Nos. 101, 102 and half of 106 Respondent No,2 Amtul Salam got the remaining 50% share in the demised property as is evident from page 26 of the Award/Decree. The demised premises consists of room/tenement No, 104 which according to the contents of rent case/ejectment application was required by respondent'
11. Moti-ur-Rehman reasonably and in good faith for being used by him as his office. The appellant/opponent raised an objection that there was no relationship of landlord and tenant between respondents and the appellant/opponent on the ground that the appellant/opponent was not a tenant of respondents. It was further submitted that Messrs Tanwir Ahmed & Co. And Tanwir Woolen Mills were the tenants of the respondents in respect of the demised premises and that there was no tenancy agreement between the respondents and Messrs Firdous Carpet (Pvt.)
12. Ltd. Which was described as a sister concern of Messrs Tanwir Ahmed & Co. And Tanwir Woolen Mills. It was further submitted that the respondents had wrongly filed the rent case/ejectment application in the name of M/s. Firdous Carpet (Pvt.) Ltd. In this connection my attention was drawn to the cross-examination of respondent Moti-ur- Rehman as well as of his witness Abdul Rehman. I have gone through the cross-examination of respondent Moti-ur-Rehman and find that he had made inconsistent and contraclictory, statements with regard- to the appellant/opponent being in occupation of the demised premises in its capacity as a tenant thereof. It will be appropriate to refer to such portions of the cross-examination, which are as under:---
(a) The demised premises was in occupation of Firdous Carpet, Tanwir Woolen as tenant in the year 1972".
(b) "It is correct to say that the receipts for rent were being issued by the previous landlord in favour of the opponent. (The opponent in the rent case was Messrs Firdous Carpet (Pvt.) Ltd.)"
(c) "I cannot say at which tenure the receipts were issued in the name of Firdous Carpet and Tanwir Woolen by previous landlord."
(d) "I do not know whether Haji Faridudin issued receipt of rent in favour of Tanwir Ahmed & Co. And Tanwir Woolen & Co. At the time of 1972 to 1977."
(e) It is correct to say that I have filed a rent case for fair rent against Tanwir Ahmed and Tanwir Woolen & Co., which I had withdrawn, Vol. Says that by mistake Firdpus Carpet was omitted".'
13. ' Abdul Rehman, witness -of respondent Moti-ur-Rehman had filed his affidavit-in-evidence and he was duly cross-examined by the Advocate for the appellant/opponent, wherein he had also made contradictdry and inconsistent statements and the statements made by him are also not consistent with the evidence of respondent Moti-ur-Rehman. It will also be appropriate to reproduce certain portions from the cross-examination of witness Abdul Rehman as under:---
(a) "It is correct to say that Tanwir Ahmed & Co. And Tanwir Woolen & Co. Are.Occupant of Room No, 104."
(b) , "It is correct to say that Tanwir Ahmed & Co. And Tanwir Woolen & Co. Were our tenant and rent proceedings were also adopted against them. Vol.. Says in beginning the tenancy was with Firdous Carpet and subsequently it might have changed I have no knowledge."
(c) "The rent receipts were being issued by us in the name of Firdous Carpet and Tanwir Woolen & Co."
(d) "I see receipts pertaining to the year 1974, 1976 they do, not show the name of Firdous Carpet."
(e) "h is correct to say that the applicant (respondents) filed a rent case against Tanwir Ahmed & Co. And Tanwir Woolen & Co. Before the Honourable VIII Rent Controller, Karachi South."
(f) "It is correct to say that the rent case was dismissed as withdrawn on 29-1-1995."
14. ' On behalf of the appellant/opponent, which is a private limited company, one Zakir Hussain, their authorised Officer filed his affidavit-in-evidence and it will be beneficial for a proper decision of this appeal to reproduce para. 4 of his affidavit-in-evidence, which is as under:---
4. I say that prior to this application, the Hafizuddin and other filed the following cases against the Tanwir Ahmed & Company and Tanwir Woolen Mills in respect of the Premises No, 104, 1st Floor, Al- Farid Center, situated at Moulvi Tamizuddin Khan Road, Karachi. {{TABLE}} Rent Case No, 2431/77 Hatizuddin and others v. Tanwir Woolen Mills Limited.
15. Rem Case No,2430/77 Hatizuddin and others v. Tanwir Woolen Mills Limited.
16. Rent App. 14o. 380/79 Hatizuddin and others v. Tanwir Woolen Mills Limited.
17. Rent App. No, 381/79 Hatizuddin and others v. Tanwir Woolen Mills Limited.
18. II RA No, 70/82 Tanwir Woolen Mills v. Hafizuddin and others. II RA No, 71/82 Tanwir Woolen Mills v.
19. Hafizuddin and others, CPSLA No,391-K/86 Hafizuddin and others v. Tanwir Woolen-Mills Limited.
20. CPSLA No,392-K/86 Hafizuddin and others v. Tan-wir Woolen Mills Limited.
21. Rent Case No,1203/88 Hafizuddin and others v. Tanwir Woolen Mills Limited.
22. Rent Case No,1205/88 Hafizuddin and others v. Tanwir Woolen Mills Limited. {{TABLE}} ' It is submitted that all these cases were decided against the Hafizuddin and others. Photo copies of the judgment passed by the various Courts as Exhs, 0/1 to 0/12."
23. ' The appellant has also produced photo copies of the judgments/orders passed in some of the aforesaid cases as Exhs.0/2 to 0/3, judgment, dated 31-5-1979 of the V Rent Controller, Karachi in Rent Cases No, 2430 of 1977 and 2431 of 1977, judgment, dated 2-11-1985 of the V Additional District Judge, Karachi in Rent Appeal No, 380 of 1979, judgment, dated 16-7-1986 of this Court in H Rent Appeals Nos. 70 and 71 of 1982.
24. ' A perusal of the aforesaid judgments/orders reveals that Rent Case No,2431 of 1977 was filed against Messrs Tanwir Woolen Mills Limited. Rent Case No, 2430 of 1977 was filed against Messrs Tanwir Ahmed, and Company. Rent Appeal No,280 of 1979 was filed against Messrs Tanwir Woolen Mills Ltd. II Rent Appeals Nos.70 and 71 of 1982 were filed by Tanwir Woolen Mills Ltd. Against Hafizudin and others. It is pertinent to note that in all the aforesaid rent cases/rent appeals the premises in dispute was room/tenement No, 104, AlFarid Center, Karachi i.e, the demised premises.
25. The respondents in their evidence stated that Messrs Firdous Carpets were the tenants. For orders in C.M.A. No, the demised premises since 1972 and the previous landlords had issued receipts in their favour but they did not produce a single copy of the rent receipt or the counter-foil of the receipt as to support their version. The fact that the previous landlords of the demised premises had filed/initiated a number of Rent Cases against Messrs Tanwir Ahmed and Co., and Tanwir Woolen Mills in respect of the demised premises in the seventies and eighties negates their contention that the demised premises was occupied by Messrs Firdous Carpets as tenants. From the aforesaid judgment/orders of the Courts there can be no doubt with regard to the contention of Mr. I.H. Zaidi that the premises in dispute was at the relevant time in occupation of Messrs Tanwir Woolen Mills Ltd. And Messrs Tanwir Ahmed & Co.
26. ' With regard to the denial of ownership and status of landlords of the respondents in respect of the demised premises it is to be noted that the demised premises previously belonged to one Hafizudin. Subsequently by an Award/Decree, dated 9-9-1986 in Suit No,191 of 1986 the area comprised in AlFarid Center/tenements/rooms was divided amongst the heirs of Late Haji Faridduin and the ownership of tenement/Room No, 104, the demised premises was settled on the respondents who had brought this fact to the knowledge of the appellant/opponent by means of a notice under section 18 of the Ordinance. In the presence of these facts the objection of the appellant/opponent with regard to the respondents being the owner of the demised premises is without any substance and has no force. It is held that from the material on record it is established beyond any doubt that respondent Moti-ur-Rehman is the owner/landlord of the demised premises.However, the evidence adduced by the respondents is very shaky and doubtful for holding that the applicant/opponent has been occupying the demised premises as tenant of the respondents. Statements made by respondent Moti-ur-Rehman as well as his witness Abdul Rehman in their cross-examination apart from being inconsistent and contradictory to each other's version do not establish beyond any doubt that the demised premises was occupied by Messrs Firdous Carpet (Pvt.) Ltd. As tenant of respondent Moti-ur-Rehman. The documentary evidence produced by appellant/opponent in the shape of photocopies of the various judgments/orders referred to above as well as the rent receipts leaves no room for doubt that the demised premises was being occupied by Messrs Tanwir Woolen Mills and Tanwir Ahmed and Co.
27. As tenants and not by the appellant/opponent. Initially they were tenants of Hafizuddin and other sons and daughters of Late Haji Faridduin but after a family settlement in the shape of an Award/Decree referred to above, the ownership of the demised premises devolved upon the respondents, whereby they became owners of the demised premises and the landlords of the tenants namely Messrs Tanwir Woolen Mills and Tanwir Ahmed and Co. In respect of the demised premises. Mr. I.H. Zaidi further submitted that respondent Moti-ur-Rehman had filed Rent Cases Nos.165 and 166 of 1994 against Messrs Tanwir Woolen Mills and Messrs Tanwir Ahmed and Co.
28. Under section 8 of the Ordinance but the same were withdrawn by them on 29-1-1995 and in none of the aforesaid two cases the appellant/opponent was made a party, which according to him was again a very strong circumstance to suggest that the appellant/opponent never was and is not the ten ant of respondent Moti-urRehman.
29. ' Mr. Lqbal Kazi, the learned Advocate appearing on behalf of the respondents submitted that notwithstanding the fact that there was contradictory and inconsistent statements made by respondent Moti-ur-Rehman and his witness . Abdul Rehman with regard to the name of the person/tenant who occupied the demised premises as tenant, the fact was that in between the lines it could be read that Messrs Firdous Carpet (Pvt.) Ltd. Was at some point of time the tenant of the demised premiss and for his above contention he also placed reliance on certain portions of the cross-examination of respondent Moti-ur-Rehman as well as of his witness Abdul Rehman and it will be appropriate to reproduce hereunder the portions relied upon by him:
(a) "It is correct to say that the receipts for rent were issued by previous landlord in favour of the opponent".
(b) "It is correct to say that I have filed a rent case for fair rent against Tanwir Ahmed and Co. And Tanwir Woolen Mills, which I had withdrawn, Vol. Says that by mistake Firdous Carpet was omitted."
30. ' Mr. Lqbal Kazi further submitted that the statements made in cross-examination to the above effect established beyond any doubt that at some point of time the appellant/opponent was occupying the demised premises as tenant of previous owners/landlords, who subsequently ceased to be the owners/landlords of the demised premises which devolved upon or was conferred on respondent Moti-ur-Rehman. In the circumstances. According to Mr. Iqbal Kazi, it is established that there existed relationship of landlord and tenant between respondent Moti-ur- Rehman and appellant/opponent and the respondents/applicants have failed to explain as to how and when Messrs Tanwir Ahmed and Co. And Tanwir Woolen Mills entered into the picture claiming themselves to be the tenants in respect of the demised premises. Mr. Lqbal Kazi also referred me to the case of Muhammad Shabbir and others v. Hamida Begum, reported in 1992 M LD 323, in support of his contention that as the appellant/opponent has established that he was in occupation or possession of the demised premises and therefore, would have to be treated as a tenant though he might not be paying rent to the owners/landlords. Pronouncement made in the cited case is of no assistance and help to Mr. Iqbal Kazi in establishing the facturn of the appellant/ opponent being the tenant of respondent Moti-ur-Rehman in respect of the demised premises for the reason that the facts of the cited case where absolutely different inasmuch as the persons who claimed themselves to be the tenants were admittedly in sole possession of the premises, whereas in the present case the appellant/opponent is not in sole possession of the demised premises which is also established to be in possession/occupation of Tanwir Ahmed and Co. And Tanwir Woolen Mills in view of overwhelming oral and documentary evidence referred to above as well as the categorical statements made by the witness of the appellant/opponent in paras. 3, 4 and 5 of his affidavit-in-evidence that Messrs Tanwir Ahmed and Co. And Tanwir Woolen Mills were the tenants in respect of the demised premises since the very inception of tenancy in respect of the demised premises; that the predecessors-in-interest of respondent Motiur-Rehman had filed several cases under the Ordinance in respect of the demised premises against Tanwir Ahmed and Co. And Tanwir Woolen Mills; and the rent receipts were always issued in favour of Tanwir Ahmed and Co.
31. And Tanwir Woolen Mills, which statements have gone unchallenged and unrebutted as no questions or suggestions to the contrary was made to the witness during his cross-examination.
32. Therefore, in the presence of the above evidence the appellant/ opponent though in possession of the demised premises yet would not be treated to be the tenant.
33. ' The above narration of the facts and discussion leads to an unavoidable inference that the respondents have failed to establish that the appellant/opponent is their tenant in respect of the demised premises, as a result of which it is not possible to hold that the relationship of landlord and tenant exists between the respondents and the appellant/ opponent. Existence of relationship of landlord and tenant is a condition precedent for conferring jurisdiction on the Rent Controller to proceed with a rent case/ ejectment application filed under the provisions of the Ordinance. The Rent Controller had not properly appreciated the evidence and material on record in holding the appellant/opponent to be the tenant of the respondents in respect of the demised premises and concluding that the relationship of landlord and tenant existed between the parties. In the circumstances, the proceedings taken by the Rent Controller in the rent case/ejectment application tiled by the respondents/applicants under section 15 of the Ordinance for eviction of the appellants/ opponents were not legally taken and the Rent Controller ought to have dismissed the rent case/ejectment application on the ground that there was no relationship of landlord and tenant between the parties so as to give him jurisdiction to proceed with the rent case/ejectment application under the provisions of the Ordinance.
34. ' The learned counsel for the appellant/opponent submitted that the respondents in their ejectment application as well as the affidavit-in-evidence categorically stated that the demised premises was required by respondent Moti-ur-Rehman reasonably and in good faith for use thereof by him as his office which statement has gone unrebutted as it was not challenged in crossexaminatiom of Moti-ur-Rehman as a result of which the personal bona fide requirement of the respondent in respect of the demised premises was established beyond any doubt. He further submitted that sole testimony of the landlord was sufficient to establish his personal bona fide requirement for use of the demised premises. In support of his contention he placed reliance on the cases of Juma Sher v. Sabz Ali reported in 1997 SCM R 1062; and Messrs F.K. Irani & Co. v. Begum Feroze, reported in 1996 SCM R 1178.
35. ' The contentions advanced to the above effect are without any substance in the circumstances of the case when respondent has failed to establish the existence of relationship of landlord and tenant between them and the appellant/ opponent. As such, the pronouncements made in the above cited cases are of no assistance to the respondents.
36. ' Upon the above discussion I find that this appeal merits consideration and must succeed.
37. Accordingly, it is allowed, eviction order of the Rent Controller is set aside and the rent case/ejectment Application filed by the respondents/applicants is dismissed.
38. Appeal allowed/